The Russellville Democrat., 1887-06-15
AFFIRMED.
The County Seat Question De- cided in favor of RussellyiIIe.
OPINION BY cocKRILL, c. J.
IT. M Neal ct al vs. J. L. Shinn, ct al
 (After statement of facts.


 case, goes to the validity of the term of the circuit court at which the pro- ceedings were had. The term as fixed by statute began on the first Monday in November, but the court was not opened until the Wednesday following when the Judge of the cir cult appeared, opened and held the term of court at which the proceed lngs complained of were had.
 If the court was held at time not authorized by law its proceedings are void. Bramley vs. State 20 Ark. IT, State vs Williams As Ib. 227. Therefore decision of this case may reach beyond the single question of the validity of the election to change the location of the county seat. It involves the legality of all the judg- ments rendered and proceedings had at the November term, 1886, of the Pope circuit court. The legislature undertook by act of February 2lst of the present year to validate the proceedings of the term, but whether the Act can have the desired effect, aside from other considerations, de- bends upon the solution of the ques- tion whether the legislature can au- thorze the judge to appear and open the court on the third day of the term after failure of the practicing attorneys to preserve the term for him by the election of special judge to preside in his absence as provided by section 2l, article ' of the consti. tuition. If the legislature is without power to authorize the Judge to ap- pear on the third day and then for the first time cause the court to be opened, it is apparent they could not breathe judicial life into his acts done at such time by retroactive act because that would be doing by indirection that which could not be done directly. If they are not pro. hibited from empowering the Judge to appear on the third day and open court, notwithstanding DO special judge had been previously chosen, the curative act was unnecessary, because the provision of the revised statutes which authorized the Judge to appear and open court as late as the third day would then stand intact unaffected by the constitutional pro, vision and would afford legislative authority for the. action of the Judge in opening court at the time disclos ed by this record. The construction of the constitutional provision refer red to must, therefore, furnish the solution of the question. fit con tains no limitation upon it's exercise, the power resides in the legislature to authorize the Judge to open court at any time within the period fixed for the term, and in that event the statute referred to is not inconsist- ent with any provision of the consti- tuition of 1868 or 1874 and has not been abrogated by it. Both instru- ments continue in force all previous laws not inconsistent with their pro visions. (Sec. l sched. const 1874, Art. l5, sec. 16, const. 1S6S).
 The provision is as follows:
 "Whenever the office of the Judge of the circuit court is vacant at the commencement Of term of such court, or the Judge of said court shall fail to attend, the regular practicing at torneys in attendance on said court, may meet at 10 o'clock a. m., on the second day of the term and elect 8 Judge to preside at such court, or until the regular Judge shall ap pear"
 It is not here affirmed in terms that the general assembly shall not authorize the court to be opened by the regular Judge after 10 o'clock of the second day Tn the event no spec ial judge is chosen. Negative words are not necessary however to create prohibition. Every positive direc tion contains an implication of any thing contrary to it, and affirmative words may imply a negative of what is not affirmed; but such an lmplica- tion is not as readily drawn in the construction as it is in dealings with statute. Vance vs. Auste!l 45 Ark 400. The reason is "the constitu tion of state is not grant of emu merated powers. We look to it not so much to see whether contested enactment is authorized, but wheth CT it is prohibited" Vance vs. Aus tell sup. For the general assembly may exercise unlimited legislative power unless restraint express or necessarily implied in the prohibit ed powers, is found in the fundamen- tai law, and this power is not to be cut of by inference save where the inference is too strong to be resisted. Scales ys. State 47 Ark. 476. But if the prohibition IS plain, whether express or implied, no argument of hardship or inconvenience or public exigency has any weight to deter the courts from checking assumed legislative power. The main pur pose of tue provision in question was to provide a ready remedy for the continuation of a term of the circuit court in the absence of the regular judge. But for this provision any term of circuit court might fail for want of power to create a special judge and great inconvenience would follow.
 No provision for special judges to hold terms of courts in the absence